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Effect of the Ricci v. Destafano Decision on Private Employers

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N EV A D A L A W Y ER
NOVEMBER 2009
BY BR U C E W I L L O U G H BY, E S Q . In July 2009, the U.S. Supreme Court handed down necessity basically mean the same thing. However, there is the Ricci v. DeStefano decision, involving firefighters and no definition in Ricci of equally valid, non-discriminatory the city of New Haven. 557 U.S. ___, 129 S. Ct. 2658, testing criteria available. The Ricci decision has major traps for private 174 L.Ed. 2d 490, (2009). Minority firefighters were denied promotion because they did not score high enough on the employers, in testing and hiring. In this time of economic promotion test, and as a result, the city of New Haven threw downturn, those employers who are contemplating out the test. This case has significant application to both reductions in force will have to evaluate the selection public and private employment testing and promotion criteria for those employees to be laid off. If the selection decisions, because it introduces a new standard to be criteria have a disparate impact based on gender or race, applied when the results of tests or promotions adversely and the employer changes the criteria to avoid the disparate affect minorities. The new test requires a “strong basis in impact on minorities, the employer may have engaged evidence” that the test was flawed. The fact that an employer in conduct found unacceptable under Ricci. The court might be sued because of the absence of minorities who emphatically held that fear of litigation by disappointed pass the test is not a sufficient reason to disregard the results minority applicants is not an adequate basis to invalidate of the test and deny promotions to non-minorities who did test results. Using the Ricci decision, attorneys and the employers pass the test. they represent may conclude that the safest course, once The Ricci decision will affect private employers in the test criteria are established to their satisfaction to be decisions they make regarding hiring and promotion and will job-related and consistent with business necessity and to affect the affirmative action policies private employers have be valid and non-discriminatory, is to continue with the in place. The court discussed the conflict between disparate selection process and ignore any disparate impact that may treatment claims by groups of employees that result from occur. As long as an employer utilizes a test that is “related an employer’s attempt to avoid a disparate impact claim. to the position in question and consistent with business The court found that employers may not make race-based necessity,” the employer will generally avoid liability. decisions with regard to test results absent a “strong basis Ricci , 129 S. Ct. at 2673. in evidence” that the test was flawed and had a disparate However, the court implies that this general rule impact on minorities. may not protect the employer, if the employee can prove The court did not provide any guidelines to educate that the employer was aware of, and refused to use, an attorneys and employers on how employers can determine alternative test that would have had a less disparate impact what qualifies as a “strong basis in evidence.” The court and which has both a relation to job performance and said that racial statistics regarding the employees was satisfies the business necessity test. Attorneys should help insufficient to show disparate impact on minorities. clients survey the tests available, to determine if there are The “strong basis” test is new, and arguably requires alternative tests that they might use to make their hiring the employer to establish that it will incur liability for and promotional decisions, in validating the employer disparate impact discrimination if it utilizes the outcome of decision to use the tests the employer selects. Ricci places an employee evaluation process. The Ricci decision means the burden on the party complaining of disparate impact that if a test is designed to be race- and gender-neutral, the to prove that there was a pragmatic and clearly better fact that the test results are different than the employer alternative. expects is not, standing alone, enough to disregard the The court noted that it does not “question an employer’s results. affirmative efforts to ensure that all groups have a fair Attorneys’ advice to employers after Ricci is that the opportunity to apply for promotions and to participate in the employer must consider two factors in determining which process by which promotions will be made. But once that tests to utilize: process has been established and employers have made clear (1) The test used must be job-related and consistent their selection criteria, they may not then invalidate the test with business necessity; and results, thus upsetting an employee’s legitimate expectation not (2) the test must use valid, non-discriminatory testing to be judged on the basis of race.” Ricci, 129 S. Ct. at 2677. criteria.
In Ricci, if the selection method has a “manifest” relation to job performance, then it satisfies business necessity. The terms related to job performance and business
BrUCe WiLLOUgHby is a shareholder in Kolesar & Leatham, Chtd. and practices both employment and construction law at the Las Vegas-based full service business law firm. You can visit the firm’s website at www.KLNEVADA.com.
EFFECT OF THE RICCI V. DESTEFANO DECISION ON PRIVATE EMPLOYERS
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